Associated Fisheries of Maine, Inc. v. Daley, Civil No. 94-89-P-H.

• Decision Date: 03 February 1997
• Docket Number: Civil No. 94-89-P-H.
• Citation: 954 F.Supp. 383
• Parties: ASSOCIATED FISHERIES OF MAINE, INC., Plaintiff, v. William DALEY, Secretary of Commerce, et al., Defendants.
• Court: U.S. District Court — District of Maine

954 F.Supp. 383

ASSOCIATED FISHERIES OF MAINE, INC., Plaintiff, v. William DALEY, Secretary of Commerce, et al., Defendants.

Civil No. 94-89-P-H.

United States District Court, D. Maine.

February 3, 1997.

COPYRIGHT MATERIAL OMITTED

Robert C. Brooks, William S. Harwood, Marianne McGettigan, Verrill & Dana, Portland, Maine, and Gene R. Libby, Verrill & Dana, Kennebunk, Maine, for Plaintiff.

David R. Collins, Asst. U.S. Atty., Office of the U.S. Attorney, Portland, Maine, Elinor Colbourn, and Charles W. Brooks, U.S. Dept. of Justice, Environment & Natural Resource, Washington, D.C., for Defendants.

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

HORNBY, Chief Judge.

INTRODUCTION

Associated Fisheries of Maine, Inc. ("Associated Fisheries") is challenging Amendments 5 and 7 to the Northeast Multispecies Fishery Management Plan. These Amendments, adopted by the Secretary of Commerce¹ upon recommendation of the New England Fishery Management Council, respond to a perceived threat to the cod, haddock and yellowtail flounder populations in the fishery. Amendment 5 was promulgated March 1, 1994, and was designed to avoid further depletion of these groundfish stocks. Amendment 7 was promulgated May 31, 1996, and places tougher restrictions on fishing vessels than Amendment 5. The stated goal of Amendment 7 is to reduce groundfish mortality due to fishing to almost zero (F = 0.1)² so that stocks actually rebuild rather than hold even. Associated Fisheries asserts that both Amendments are disastrous for small fishing boats—particularly the trawling industry—in the area. Associated Fisheries challenges the Amendments under the Regulatory Flexibility Act, 5 U.S.C. § 601 et seq., the Administrative Procedure Act, 5 U.S.C. § 551 et seq.; § 701 et seq., the Magnuson Act, 16 U.S.C. § 1801 et seq., and Executive Orders 12,291 and 12,866, 46 Fed.Reg. 13,193 (1981); 58 Fed.Reg. 51,735 (1993). Associated Fisheries also argues that section 208 of the Omnibus Consolidated Appropriations Act of 1997, Pub.L. No. 104-208, 100 Stat. 3009 (1996), bans implementation of Amendment 7.³

Although these issues have been presented to me in the form of summary judgment motions with statements of disputed and undisputed facts, my task is to review the administrative record and to apply the law to this record. I conclude that Associated Fisheries's challenge to Amendment 7 cannot be sustained. I therefore need not address the enforceability of Amendment 5.

STANDING

The Secretary has challenged Associated Fisheries's standing, but the argument cannot be taken seriously. Associated Fisheries meets all the requirements of standing recently laid out in Dubois v. United States Dep't of Agriculture, 102 F.3d 1273, 1280-81 n. 11 (1st Cir.1996).⁴ Associated Fisheries of Maine, Inc. is a membership organization whose objective is to protect the interests of commercial fishermen. The ability to fish commercially is directly affected by the new regulation in a concrete and particularized fashion that is actual, distinct and palpable, not conjectural or hypothetical. The Secretary argues that the amendments in the long run will actually improve the Northeast fishery stocks, but that contention goes to the heart of the merits of the dispute and does not affect standing. (The Secretary's own studies project that Amendment 7 will cause some financial hardship for fishing vessels. A.R. 10915A.227-29.) Neither the claim asserted nor the relief requested requires the personal participation of individual Associated Fisheries members in this lawsuit and one or more of the members certainly would satisfy the individual requirements for standing in his or her own right.⁵

THE REGULATORY FLEXIBILITY ACT

Associated Fisheries claims that the Secretary violated the Regulatory Flexibility Act ("RFA"), 5 U.S.C. § 601 et seq., in promulgating Amendment 7, by failing to perform an adequate final regulatory flexibility analysis. I find that the agency complied with the RFA as it applied to the promulgation of Amendment 7.

Before the RFA was last amended on March 29, 1996, Pub.L. No. 104-121, 110 Stat. 864, effective June 27, 1996, section 604(a) provided:

When an agency promulgates a final rule ..., the agency shall prepare a final regulatory flexibility analysis. Each final regulatory flexibility analysis shall contain—

(1) a succinct statement of the need for, and the objectives of, the rule;

(2) a summary of the issues raised by the public comments in response to the initial regulatory flexibility analysis, a summary of the assessment of the agency of such issues, and a statement of any changes made in the proposed rule as a result of such comments; and

(3) a description of each of the significant alternatives to the rule consistent with the stated objectives of applicable statutes and designed to minimize any significant economic impact of the rule on small entities which was considered by the agency, and a statement of the reasons why each one of such alternatives was rejected.

5 U.S.C. § 604(a). This was the provision in effect when the Secretary promulgated Amendment 7 to the Fishery Management Plan on May 31, 1996.

As its final regulatory flexibility analysis, the agency combined its initial regulatory flexibility analysis, performed under section 603 of the RFA, with its response to comments it received. A.R. 13176, 13197-98. Associated Fisheries complains that the Secretary improperly failed to comply with requirement (3), in failing to examine the effect of Amendment 7 on small businesses (particularly trawlers and other small fishing boats), and in failing to identify and examine alternatives that would reduce the burden on these entities. The final rule issued by the agency, however, carefully lists the comments and responses the Secretary received and explains why alternatives that would reduce the burden on small entities were rejected. A.R. 13178 et seq. Associated Fisheries may be correct that not every alternative has been considered by the agency, but the RFA requires examination only of "significant" ones. 5 U.S.C. § 604(a)(3). I am satisfied that the Secretary fulfilled this requirement. Indeed, much of the eighteen pages that are the comments and responses portion of the final rule are directed to a discussion of alternatives. See, e.g., responses to comment numbers 12-14, 18, 22-23, 25-27, 35, 37, 39-40, 43, 48, 58 and 65. In addition, the agency describes many alternatives and public discussions of these alternatives in the Final Supplemental Environmental Impact Statement for Amendment 7. A.R. 10915A.68-77.

Moreover, I now conclude—contrary to my statements at oral argument on August 8, 1996—that judicial review is unavailable on this claim. Until the RFA was amended by the Small Business Regulatory Enforcement Fairness Act ("SBREFA"), Pub.L. No. 104-121, 110 Stat. 857, 864-68 (1996), section 611 expressly prohibited judicial review. 5 U.S.C. § 611. The March 29, 1996, amendments added judicial review for certain provisions, sec. 242, § 611, but delayed the effective date for ninety days, sec. 245, namely, until June 27, 1996, almost a full month after the final rule implementing Amendment 7 was published. Because the Second Amended Complaint was filed after June 27, 1996, I stated at oral argument that judicial review applied in the absence of any explicit prohibition.⁶ At oral argument, however, I was not focusing on the fact that the March 29 amendments also added requirements an agency must undertake in promulgating a final regulatory flexibility analysis. Sec. 241(b). Such additions obviously cannot apply to a final regulatory flexibility analysis previously promulgated. It would be anomalous to apply the judicial review portion of the 1996 amendments to past agency actions but at the same time not apply the substance of those amendments, unless Congress expressly stated that was its intent. But Congress did not. The amendments introduced by SBREFA were one legislative package and therefore should be interpreted consistently throughout where Congress has made no differentiation.⁷ I conclude that judicial review is not available for Amendment 7 promulgated on May 31, 1996.⁸

THE ADMINISTRATIVE PROCEDURE ACT

Associated Fisheries claims that the Secretary failed to conscientiously consider comments responding to Amendment 7, and that the comment period was therefore just an empty exercise, in violation of section 553(c) of the Administrative Procedure Act ("APA"). It claims that the Secretary thereby engaged in arbitrary and capricious rulemaking under section 706(2) of the APA, which states: "a reviewing court shall hold unlawful and set aside agency action ... found to be arbitrary, capricious, or an abuse of discretion, or otherwise not in accordance with law."

The central focus of this arbitrary and capricious claim is Associated Fisheries's argument that the agency had previously made up its mind to change its rulemaking goal from (a) rebuilding stocks of groundfish to (b) reducing groundfish mortality to F = 0.1, and that the agency went forward single-mindedly to pursue its new goal without consideration of comments. The administrative record supports a finding, however, that the agency did consider comments. For example, eighteen pages of the final rule, as it was published in the Federal Register, were devoted to a discussion of comments and responses. 61 Fed.Reg. 27,709, 27,711 et seq. (1996) (to be codified at 50 C.F.R. pt. 651); A.R. 13176, 13178 et seq. As another example, the administrative record also contains an internal memorandum between agency staff in which the plaintiff's submitted comments were analyzed paragraph by paragraph. A.R. 12824-30. Although Associated Fisheries may believe that the agency's position was fixed from the outset, a court can only review whether the agency record shows fair consideration and treatment of the comments. The record here does so.

THE MAGNUSON ACT

The Magnuson Act, 16 U.S.C. §...